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  #1  
Old 08-10-2017, 12:22 PM
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Default When burglary is not burglary... Advice needed

I am engaged to be married. My fiancé is divorced, and the divorce was final 2 ½ years ago. They still have not settled their property issues, but they have lived separately for the last 2 ½ years. They have two properties remaining, in BOTH of their names; her ex resides in one, my fiancé lives in the other.

At the end of June, while she was away, her ex came into her residence without her consent, permission, or knowledge, and went all through her house and her things. My son caught him inside the home when he checked on the house for her. Her ex left, and we could find nothing missing except the 13 ball from the pool table.

She was outraged, and called the Sheriffs Dept. to inform them of the break in. They said since her ex was also on the title of the home, he had a right to come in. The only way they could stop it was if she had a restraining order against him. She called her attorney and asked him about filing for a restraining order, and he told her it was nonsense since he had not physically abused her since her divorce 2 ½ years ago.

Two weeks later, he again broke in while we were out of town. This time he stole all of her files (6 full banker boxes). This included 4 boxes that had all of her files pertaining to their divorce. Her ex and his attorney had previously had access to these 4 boxes, but, after they were returned to my fiancé, she put all of her confidential notes from meetings she had with her attorney all throughout the 4 boxes (she put her notes in with each file the notes corresponded too, if that makes sense).

The other 2 stolen boxes were all of my fiancés personal files, and all of her grandmother’s personal files. This included her personal tax returns, banking statements, a file on a home she sold unrelated to their divorce, etc. Her grandmother’s files included her banking, tax returns, all of her medical information, and a bag containing her personal property. He also stole a wheel barrow and some tools.

Her Ex ADMITS to taking her files, and he delivered them to his attorney…
Again, my fiancé called the Sheriffs Dept. They refused to take a report for her stolen property, saying since her ex is on the title to the home that he has the right to come on her property, even to break her front door lock, enter her residence and remove her belongings. That it is a “civil” matter they say. They recommended again that we look into a restraining order since they could enforce that.

She informed her attorney that the boxes contained confidential, privileged attorney meeting notes and asked her ex’s attorney to return them. She (her ex’s attorney) has refused, saying she won’t read any of her confidential notes as she goes through the boxes. My fiancés attorney doesn’t seem to have a set, and has the attitude “oh well, nothing we can do…”
We have contacted the D.A. and they refuse to do anything since the Sheriffs Dept. refused to take a report of a crime.

She has now filed for, and received, a temporary restraining order to keep him out of her home… restraining order is granted until the hearing next week.

Here are my questions:
Is there anything else we can do?
Could we demand to report a crime?
Would you agree that it’s only civil, not criminal?
Any advice is welcome…

Last edited by jamesonamac; 08-10-2017 at 12:29 PM.. Reason: spelling...
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Old 08-10-2017, 12:44 PM
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My two cents which is only worth about half a penny is that it is indeed a civil matter. Ethically wrong but if he's on the title he has property rights. Out of curiosity, a couple of questions.

1. 2 1/2 years, why hasn't the property matter been handled? Has it been in the courts attempting to be handled? Not positive but if the answer to that is yes then I think it might matter but I could easily be wrong about that.

2. Why is she storing confidential paperwork that has a bearing on their divorce and property issues where her abusive x husband has property rights? Instead of a 3rd party location?

I hope there is no information in there that is going to affect the terms of their divorce, or property dispute...
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Old 08-10-2017, 12:47 PM
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In these situations where property has been divided but not set forth in a judgment or court order, I consider it legal malpractice to not at least get a court order detailing that the parties have exclusive use, possession and control of the property until further order of the court. It would take a creative argument to overcome such a request made to the court.

Your fiance needs to file an ex parte hearing in family court demanding the immediate return of her confidential legal files, and to set a motion seeking sanctions on her husband. This is the sort of conduct that the court needs to discourage a party from engaging in, by issuing sanctions.

In my opinion this is burglary. If I was a landlord, and I entered my tenant's residence, and took their personal property, I would consider this to be a burglary.
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Old 08-10-2017, 1:15 PM
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I'm not your lawyer and nothing I say here is legal advice.

Is there anything else we can do?
I think she needs to find a better attorney; you need qualified legal help here, not random advice from a forum. As you've been advised by the Sheriff repeatedly, take him off the title. To do that you need a formal court order where a judge signs off on your agreement as Randy mentions above. If you can't expediently get that, moving is perhaps her best option right now. At a minimum she should store her valuables and documents somewhere else. Safe deposit box or at your place. I also think you should pursue the restraining order vigorously. Given that he's been inside the house you may also want to check for hidden cameras or recording devices he left behind. Like I said, moving is probably the best option.

I'm not sure what the law is on entering into a lease without joint consent (edit: seems possible based on quick google), but even if it wasn't kosher a court would have to adjudicate that and you may gain some short term relief by having her lease the house over to you. Once a lease is in effect on the house you gain tenant rights under CA law that limit when a property owner can enter the premises. Read more about CA tenant rights here.

In response he can file a claim of adverse possession with the courts, but like I said it may buy you some time, increase his civil liability, and afford additional legal rights as you personally may be able to file a restraining order against him (in addition to hers) if he enters the property while you are leasing it. It's just a thought but maybe one worth exploring. Be advised, any rent you pay on the property will technically be 50% his, so you should look into this thoroughly and discuss with an attorney before you commit to this plan.


Could we demand to report a crime?

I don't think so, not on the basis of him entering the property. As long as his name is on the title and there is no lease suspending his own property rights he can enter 100% of the property (even partial ownership affords full access rights). Maybe there are some privacy laws related to a finalized divorce that I'm not aware of. Again, you need to speak to an attorney about this stuff - but it is unfortunately true that he is legally allowed to be on the property, just as she is legally allowed to enter the place he's staying (though not anymore if a restraining order is in effect).


Would you agree that it’s only civil, not criminal?

Yes, for reasons cited above; and yes it totally sucks - I'm empathetic to your position 100% just trying to give you objectivity here. It becomes criminal if he violates a restraining order or a judge signs an agreement to her property settlement connected with the divorce and he enters after that. It may be criminal under some vague privacy law that I'm not aware of, but I'd guess that unlikely.

Good luck. Sorry you're both having to deal with this :\
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Last edited by naeco81; 08-10-2017 at 1:30 PM..
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Old 08-10-2017, 2:20 PM
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maybe a theft; at best. If it's been 30months, both are still on the title, no R/o's, no court documents indicating what is to happen to the property... I ain't writing a crime report. How would I know it wasn't his stuff in there? And if his attorney has it that will be handled in court.

She needs to get off her butt and get this handled and/or find new counsel
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Old 08-10-2017, 2:24 PM
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Your friends are probably all already telling you this: You need a new girlfriend.
Seriously, what makes her so amazing to ignore these OBVIOUS, GLARING, HORRIFYING RED FLAGS?

Just remember that that "Ex" you're complaining about is YOU in the future. Act accordingly.
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Old 08-10-2017, 2:29 PM
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Not sure about any of the legal issues but why didn't she change the locks and update the security system?
Especially after the 1st "break-in".
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Old 08-10-2017, 2:41 PM
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Your friends are probably all already telling you this: You need a new girlfriend.
Seriously, what makes her so amazing to ignore these OBVIOUS, GLARING, HORRIFYING RED FLAGS?

Just remember that that "Ex" you're complaining about is YOU in the future. Act accordingly.
Wow that's pretty unnecessary.
Sorry if your life sucks but no need to drag the world down with you.
Can't possibly see how any of this relates to his fiancee's character. Grow up.
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Old 08-10-2017, 4:58 PM
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Quote:
Originally Posted by naeco81 View Post
I'm not your lawyer and nothing I say here is legal advice.

Is there anything else we can do?
I think she needs to find a better attorney; you need qualified legal help here, not random advice from a forum. As you've been advised by the Sheriff repeatedly, take him off the title. To do that you need a formal court order where a judge signs off on your agreement as Randy mentions above. If you can't expediently get that, moving is perhaps her best option right now. At a minimum she should store her valuables and documents somewhere else. Safe deposit box or at your place. I also think you should pursue the restraining order vigorously. Given that he's been inside the house you may also want to check for hidden cameras or recording devices he left behind. Like I said, moving is probably the best option.

I'm not sure what the law is on entering into a lease without joint consent (edit: seems possible based on quick google), but even if it wasn't kosher a court would have to adjudicate that and you may gain some short term relief by having her lease the house over to you. Once a lease is in effect on the house you gain tenant rights under CA law that limit when a property owner can enter the premises. Read more about CA tenant rights here.

In response he can file a claim of adverse possession with the courts, but like I said it may buy you some time, increase his civil liability, and afford additional legal rights as you personally may be able to file a restraining order against him (in addition to hers) if he enters the property while you are leasing it. It's just a thought but maybe one worth exploring. Be advised, any rent you pay on the property will technically be 50% his, so you should look into this thoroughly and discuss with an attorney before you commit to this plan.


Could we demand to report a crime?

I don't think so, not on the basis of him entering the property. As long as his name is on the title and there is no lease suspending his own property rights he can enter 100% of the property (even partial ownership affords full access rights). Maybe there are some privacy laws related to a finalized divorce that I'm not aware of. Again, you need to speak to an attorney about this stuff - but it is unfortunately true that he is legally allowed to be on the property, just as she is legally allowed to enter the place he's staying (though not anymore if a restraining order is in effect).


Would you agree that it’s only civil, not criminal?

Yes, for reasons cited above; and yes it totally sucks - I'm empathetic to your position 100% just trying to give you objectivity here. It becomes criminal if he violates a restraining order or a judge signs an agreement to her property settlement connected with the divorce and he enters after that. It may be criminal under some vague privacy law that I'm not aware of, but I'd guess that unlikely.

Good luck. Sorry you're both having to deal with this :\
There is some good advice in this post, and I'll make a few comments.

I had one case where a husband installed a recording device on the phone line and hid the electronics in the crawl space, so the above advice about searching for hidden cameras, and other electronics is an excellent suggestion.

I believe your girlfriend qualifies for a DVTRO, however, the quicker more cost effective way is to have the attorney appear ex parte and get an order that he cannot enter the residence without permission or a court order. Your girlfriend's attorney should be doing this for free, he clearly dropped the ball by not having something in writing that your girlfriend has exclusive use, possession and control of this property. Any attorney with a reasonable amount of family law experience, should have foreseen this circumstance.

Your girlfriend does not need a lease, she just needs a court order.

The husband cannot file a claim in another court pertaining to this property. It is already the subject of the marital dissolution case, and the family court has exclusive jurisdiction over almost all matters between a husband and wife while they are in the process of divorcing.

I am going to back off on my opinion that this is burglary. With no lease, and no existing court order, I believe the husband would have a good defense to a burglary charge.

However, as I stated above, his conduct is egregious and it is exactly why the court has the power to issue monetary sanctions against a party, that engages in this type of behavior.
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Old 08-10-2017, 5:05 PM
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At the very least should have put that confidential stuff in off site storage after the first "Break-in"

.
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Old 08-11-2017, 10:06 AM
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Originally Posted by naeco81 View Post
Wow that's pretty unnecessary.
Sorry if your life sucks but no need to drag the world down with you.
Can't possibly see how any of this relates to his fiancee's character. Grow up.
Choice of spouse reflects on character.

Starting a new relationship while still having connections to an old one (that doesn't involve a child) reflects on character.

So do personal insults and hypocrisy---like hurling personal insults towards someone and then telling them to grow up.
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Old 08-11-2017, 11:42 AM
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Also would suggest you change wifi password and network name (SSID) at the house OP.
Frankly I would replace the router with one of my own.
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Old 08-13-2017, 8:10 AM
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People seriously dropped the ball on this. 30 MONTHS later...still property issues? Without legal protection?
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Old 08-13-2017, 3:44 PM
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1. Tell your fiance to get a new lawyer that is going to work on her behalf
2. Report Exs lawyer to the State Bar for position of stolen property and unethical behavior
3. Tell fiance to hire mover to go to her other property (where ex lives) while he is out and move everything to a undisclosed location.
4. Tell fiance to go to her other property (where Ex lives) and break all the windows and when the police arrive, tell them its also her property and she can destroy it if she wants.

Last edited by Trriemferent; 08-13-2017 at 3:52 PM..
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Old 08-13-2017, 4:43 PM
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Ditto what RandyD said. It is the shortest distance from A to B.
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Old 08-13-2017, 5:04 PM
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Her files her property. Burglary = entering a structure with intent to commit grand theft petty theft or any other felony.
The fact he turned the product of his theft over to his attorney is enough to get him thrown off the case. Talk to the DA not the cops. Get a restraining order. What happens if he comes in while she is there?
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Old 08-13-2017, 5:58 PM
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Quote:
Originally Posted by Trriemferent View Post
1. Tell your fiance to get a new lawyer that is going to work on her behalf
2. Report Exs lawyer to the State Bar for position of stolen property and unethical behavior
3. Tell fiance to hire mover to go to her other property (where ex lives) while he is out and move everything to a undisclosed location.
4. Tell fiance to go to her other property (where Ex lives) and break all the windows and when the police arrive, tell them its also her property and she can destroy it if she wants.
First one, do it. Second one, sure, why not. Third; tread lightly. Fourth; yes, do that one if she would like to face a felony vandalism charge and get an EPO issued against her.

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Her files her property. Burglary = entering a structure with intent to commit grand theft petty theft or any other felony.
The fact he turned the product of his theft over to his attorney is enough to get him thrown off the case. Talk to the DA not the cops. Get a restraining order. What happens if he comes in while she is there?
Talk to the DA and tell them what? If the ex goes to what is still apparently legally HIS HOUSE while she is there.... who knows; but a crime isn't being committed based on what the OP has said.
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Old 08-13-2017, 6:20 PM
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CBR...... Im not LEO or a lawyer (prolly should have mentioned that in my original post) but Im wondering what the difference is between #3&4 vs. the ex breaking her front door/lock and taking her personal files. Im not trying to be argumentative but wondering at point does it become a crime vs. its his property so he can damage the property.
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Old 08-13-2017, 6:55 PM
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After reading reaction above I'm guessing I'm gonna be accused of dragging you down after this....

The warning about maybe a new girlfriend is something not to just be ignored. Not because she's made bad judgement calls, I've know a few people who when divorce came the person they were with seemed to be totally out of character to who they knew. And for whatever reason it is normally the husband that's an *******.

I think What should worry you is that if he's this big an ******* he's not likely to just go away. And if she's dealing with him long term then you will be too. Since you can't just kick his *** without getting in trouble it just means you'll have to sit back and put up with it.

I'd also want to evaluate why things have drug on for 2.5 years. Is it just that he's managed to out maneuver her (I knew one poor lady who's deadbeat ex when she finally left him managed to convince CPS she was abusive to the kids, took them away, messed with her so much she actually ended up having a mental breakdown) or was she partially to fault for it. If she's part of the reason id see that as a flag too.

Definitely she should get a new attorney, sounds like hers is a POS.

You can all pile on me as much as you want, reality is there'd be a lot less problems if people would use their brain more than just their heart.

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Old 08-13-2017, 8:33 PM
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Originally Posted by Trriemferent View Post
CBR...... Im not LEO or a lawyer (prolly should have mentioned that in my original post) but Im wondering what the difference is between #3&4 vs. the ex breaking her front door/lock and taking her personal files. Im not trying to be argumentative but wondering at point does it become a crime vs. its his property so he can damage the property.
This is precisely why "she" in this case needs to be very careful. The courts have ruled that spouses can in fact be cited/arrested for vandalism when they damage communal property; usually the person cited/arrested is charged for half the value; IE $2,000 in damage to windows at a house they both own would be $1,000 worth of damages for a vandalism charge.

Things are a little bit different if one party is intentionally trying to restrict access to communal property... but now we are really starting to get into the weeds on this stuff. If "she" breaks into the other property because she forgot a purse the courts are going to look at it very different than if she is breaking in to get necessary medications after she has called three times to get the other half to open the door; for instance.
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Old 08-13-2017, 9:33 PM
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Originally Posted by irishsig View Post
Not sure about any of the legal issues but why didn't she change the locks and update the security system?
Especially after the 1st "break-in".
This ^

Put valuables in a safety deposit box, public storage shed with safe inside, keep at a friend's house, hide in the house, etc.
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Old 08-14-2017, 2:19 AM
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4. Tell fiance to go to her other property (where Ex lives) and break all the windows and when the police arrive, tell them its also her property and she can destroy it if she wants.
First one, do it. Second one, sure, why not. Third; tread lightly. Fourth; yes, do that one if she would like to face a felony vandalism charge and get an EPO issued against her.


"destroy it if she wants" is not what you tell the cops.

What you do is hire a low budget CONTRACTOR to start a "remodel". Play it kinda straight with a legit contract and tell them you need the demo part done ASAP. That should not be a prob because it gets the contractor's foot in the door. Have water and electric not just "off" but out of commission.

And if both parties have legal permission to be in either house, I think that also means "guests" so after removing valuables bring in some new "friends" you found at local biker bar and have them at both houses. Then what will happen is there will be an 'altercation' between him and a biker, and the other bikers will all say he attacked the biker for no reason, and the biker was "just defending himself", etc. Bikers will know what to say to get away with beating someone up.

Wait, scratch the Biker Idea because even mentioning it on this website might cause probs since this site is pretty sensitive about discussing anything that might be 'breaking the law', and I've got a better idea. Have her act like she has "flipped out" and has started some hair brained charity group and flood both properties with the "clients". The divorce from Mr Wonderful was just too much so she decided to become like a nun and devote her life to Good Works, and those 250,000 Syrian rapugess gotta go somewhere.

This will put him suddenly very out of his "comfort zone".
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Old 08-14-2017, 5:12 PM
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There are a few comments, questioning why the property is not fully settled after a long period of time. I have been handling divorces for over 24 years, and it is not that uncommon to have a case last years. There are various reasons, some times the parties run out of money, and other times they get tired of litigating and just let the dust settle, and when things are going well, the last thing someone wants to do is take the other back to court, because it stirs up a lot of emotions.
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Old 08-14-2017, 5:37 PM
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I'm thinking someone needs to clean up some of the posts in this thread. Especially the one's giving bad, illegal advise.
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